Save the Peaks Coalition, et al. v. U.S. Forest Service et al, No. 3:2009cv08163 - Document 142 (D. Ariz. 2010)

Court Description: ORDER denying 74 Motion for Summary Judgment; denying 85 Motion to Strike; granting 88 Motion for Summary Judgment; granting 92 Motion for Summary Judgment; denying 101 Motion to Strike. IT IS FURTHER ORDERED directing the Clerk to enter judgment for Defendants. (See document for further details). Signed by Judge Mary H Murguia on 11/30/10.(LAD)

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Save the Peaks Coalition, et al. v. U.S. Forest Service et al 1 Doc. 142 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 The Save the Peaks Coalition, et al., Plaintiffs, 10 11 vs. 12 United States Forest Service, et al., 13 Defendants. 14 ) ) ) ) ) ) ) ) ) ) ) ) No. CV 09-8163-PCT-MHM ORDER 15 16 17 This lawsuit concerns challenges under the National Environmental Policy Act 18 (“NEPA”), 42 U.S.C. §§ 4321 - 4370(d) to the United States Forest Service’s 2005 decision 19 to allow Intervenor-Defendant Arizona Snowbowl Resort Limited Partnership (“the 20 Snowbowl”) to upgrade its operations by allowing the production of man-made snow using 21 non-potable Class A+ reclaimed wastewater. See Ariz. Admin. Code § R18-11-303. 22 Plaintiffs are specifically challenging whether the 2005 Environmental Impact Statement 23 prepared and issued by the Forest Service in connection with this upgrade violated the 24 National Environmental Policy Act, 42 U.S.C. §§ 4321 - 4370d (“NEPA”) by failing to 25 properly and sufficiently consider and address the possibility or likelihood that people would 26 ingest snow made from Class A+ reclaimed wastewater and the health impact of such 27 potential ingestion. 28 Currently pending before the Court are Plaintiffs’ The Save the Peaks Coalition, Dockets.Justia.com 1 Kristin Huisinga, Clayson Benally, Sylvan Grey, Don Fanning, Jeneda Benally, Frederica 2 Hall, Berta Benally, Rachel Tso, and Lisa Tso's Motion for Summary Judgment, (Doc. 74), 3 and Motion to Strike, (Doc. 101). 4 Snowbowl Resort Limited Partnership’s (“the Snowbowl's”) Motion to Strike Plaintiffs' 5 Citation to the Vacated Ninth Circuit Panel Opinion, (Doc. 85), and Motion for Summary 6 Judgment, (Doc. 88), as well as Defendant United States Forest Service and Earl Stewart, in 7 his official capacity as Forest Supervisor for the Coconino National Forest’s (“the Federal 8 Defendants”) Motion for Summary Judgment, (Doc. 92). After reviewing the pleadings and 9 conducting oral argument on July 20, 2010, the Court issues the following order. 10 I. Also pending are Intervenor-Defendant Arizona FACTUAL AND PROCEDURAL HISTORY 11 Most of the core facts in this case are not disputed. The San Francisco Peaks are part 12 of 1.8 million acres of public federal land located within the Coconino National Forest. 13 Since at least 1938, people have been attracted to the snow-covered slopes of the San 14 Francisco Peaks for skiing and winter recreation activities. As winter sports activity 15 increased over time, a ski area was developed and expanded on the western flank of the San 16 Francisco Peaks—with a Poma lift installed in 1958, and a chair lift installed in 1962. The 17 ski area, currently known as the Arizona Snowbowl, is located entirely on 777 acres of land 18 within the Coconino National Forest. The Snowbowl operates under a Forest Service-issued 19 Special Use Permit (“SUP”) pursuant to the Forest Ski Area Permit Act of 1986, 16 U.S.C. 20 § 497(b). The SUP is renewable on a 40-year basis. In 1979, the Snowbowl introduced a 21 master plan for upgrading the ski area. The master plan included proposals for the installation 22 of new lifts, trails, and facilities. Shortly after the Forest Service approved the Snowbowl’s 23 proposed upgrades in 1979, several Native American Tribes challenged the decision in 24 federal court. The Forest Service’s decision approving the master plan was ultimately upheld 25 by the District of Columbia Court of Appeals. See Wilson v. Block, 708 F.2d 735 (D.C. Cir. 26 1983), cert. denied, 464 U.S. 956 (1983). 27 In 2002, Intervenor-Defendant Snowbowl submitted to the Forest Supervisor for the 28 Coconino National Forest a formal proposal entitled the “Arizona Snowbowl Facilities -2- 1 Improvements Proposal.” The goals of the Proposed Action were twofold: (1) to provide a 2 consistent and reliable operating season and (2) to improve safety, skiing conditions, and 3 recreational opportunities by bringing terrain and infrastructure into balance with existing 4 demand. The proposed action included a request for snowmaking from non-potable Class A+ 5 reclaimed wastewater supplied by the City of Flagstaff through a previously authorized 6 agreement with the Snowbowl. The en banc Ninth Circuit characterized the non-potable 7 Class A+ reclaimed wastewater that is to be utilized on the Snowbowl as follows: 8 9 10 11 The recycled wastewater to be used for snowmaking is classified as “A+” by the Arizona Department of Environmental Quality (“ADEQ”). [] A+ recycled wastewater is the highest quality of recycled wastewater recognized by Arizona law and may be safely and beneficially used for many purposes, including irrigating school ground landscapes and food crops. [] Further, the ADEQ has specifically approved the use of recycled wastewater for snowmaking. 12 13 14 15 16 17 * * * The recycled wastewater that will be used at the Snowbowl “will undergo specific advanced treatment requirements, including tertiary treatment with disinfection. In addition, the reclaimed water will comply with specific monitoring requirements, including frequent microbiological testing to assure pathogens are removed, and reporting requirements.”[] Further, the recycled wastewater will “comply with extensive treatment and monitoring requirements under three separate permit programs: the Arizona Pollutant Discharge Elimination System (“AZPDES”) Permit, the Arizona Aquifer Protection Permit Program, and the Water Reuse Program.” [] 18 Navajo Nation v. United States Forest Serv., 535 F.3d 1058, 1065 (9th Cir. 2008) (en banc), 19 cert. denied, 129 S.Ct. 2763 (2009) (internal citations and internal footnote omitted). 20 In September 2002, the Forest Supervisor for the Coconino National Forest issued a 21 scoping notice on the Forest Service’s Proposed Action for improvements at the Snowbowl 22 to interested individuals, public agencies, and other organizations. The notice included a 23 summary of the proposed action, including the proposal to create snow from Class A+ 24 reclaimed wastewater. 25 On October 7, 2002, the Forest Service published a notice of intent to prepare an 26 Environmental Impact Statement (“EIS”) in the Federal Register. The notice stated that the 27 chief feature of the Proposed Action was to produce artificial snow from Class A+ reclaimed 28 -3- 1 wastewater on 203.5 acres of skiing terrain within the SUP area. See 67 Fed. Reg. 62435 2 (Oct. 7, 2002). On February 2, 2004, the Forest Service issued a Draft Environmental Impact 3 Statement (“DEIS”). On February 18, 2005, the Forest Supervisor for the Coconino National 4 Forest issued the Final Environmental Impact Statement (“FEIS”) for the Arizona Snowbowl 5 Facilities Improvements proposal. The Record of Decision (“ROD”) was then issued on 6 February 18, 2005. The ROD selected Alternative Two, which includes authority to make 7 snow from Class A+ reclaimed wastewater. The Forest Service thereafter received 8 twenty-eight appeals from fifty-nine individuals and organizations. (See AR Index, p. 15 - 9 17) (listing individuals and organizations who submitted materials to the Appeal Deciding 10 Officer). 11 In June 2005, four groups of plaintiffs, composed of several Native American Tribes 12 and Nations, along with various individuals, and environmental organizations, filed suit in 13 the United States District Court for the District of Arizona, challenging the Forest Service’s 14 actions in the Arizona Snowbowl Facilities Improvements Project. 15 consolidated into a single action before the Honorable Paul G. Rosenblatt. See Navajo 16 Nation v. United States Forest Serv., 408 F. Supp. 2d 866 (D. Ariz. 2006) (consolidating 17 Nos. CV 05-1824-PCT-PGR, CV-05-1914-PCT-EHC, CV-05-1949-PCT-NVW, CV- 18 05-1966-PCT-JAT). The plaintiffs in the consolidated Navajo Nation litigation consisted of 19 the Hopi Tribe, the Navajo Nation, the White Mountain Apache Nation, the Yavapai-Apache 20 Nation, the Hualapai Tribe, the Havasupai Tribe, Norris Nez, Bill Bucky Preston, Rex 21 Tilousi, Dianna Uqualla, the Sierra Club, the Center for Biological Diversity, and the 22 Flagstaff Activist Network. The Navajo Nation plaintiffs brought claims for alleged 23 violations of the Religious Freedom Restoration Act of 1993 (“RFRA”), 42 U.S.C. §§ 24 2000bb et seq., the National Environmental Policy Act of 1969 (“NEPA”), 42 U.S.C. §§ 25 4321 et seq., and the National Historic Preservation Act (“NHPA”), 16 U.S.C. §§ 470 et seq., 26 the Endangered Species Act, 16 U.S.C. § 1531 et seq. (“ESA”), the Grand Canyon National 27 Park Enlargement Act, 16 U.S.C. § 228i (“GCEA”), the National Forest Management Act, 28 16 U.S.C. §§ 1600-1687 (“NFMA”), and a count alleging the United States had failed to -4- The cases were 1 comply with its trust responsibilities to the various Native American Tribes and Nations. See 2 Navajo Nation, 408 F. Supp. 2d at 871. 3 With respect to NEPA, the Navajo Nation plaintiffs’ complaint specifically alleged 4 that “(1) the [FEIS] failed to consider a reasonable range of alternatives to the use of recycled 5 wastewater; (2) the FEIS failed to discuss and consider the scientific viewpoint of Dr. Paul 6 Torrence; (3) the FEIS failed adequately to consider the environmental impact of diverting 7 the recycled wastewater from Flagstaff's regional aquifer; and (4) the FEIS failed adequately 8 to consider the social and cultural impacts of the Snowbowl upgrades on the Hopi people.” 9 Navajo Nation, 535 F.3d at 1079. At summary judgment, the plaintiffs for the first time 10 raised a claim that “the FEIS failed adequately to consider the risks posed by human 11 ingestion of artificial snow.” Id. As the en banc Ninth Circuit noted, “[the relevant] 12 complaint did not include this NEPA claim or the factual allegations upon which the claim 13 rests.” Id. The defendants in the Navajo Nation lawsuit responded to this new argument in 14 their appeal brief contending that the plaintiffs had failed to properly plead this new NEPA 15 claim in the complaint. The plaintiffs countered by moving the district court for leave to 16 amend their complaint to add the NEPA claim relating to the risks posed by human ingestion 17 of snow made with Class A+ reclaimed wastewater. The district court denied the motion 18 for leave without comment. Navajo Nation, 408 F. Supp. 2d at 908 (“IT IS FURTHER 19 ORDERED that the Navajo Plaintiffs' Motion to Amend/ Correct Amended Complaint (Doc. 20 75) is DENIED”). 21 The district court ultimately granted summary judgment for the defendants on all 22 claims, except the RFRA claim, which was similarly denied after a lengthy trial to the bench. 23 See id. The case was then appealed. On appeal, a three-judge Ninth Circuit panel affirmed 24 in part, and reversed in part, the district court’s ruling. See Navajo Nation v. United States 25 Forest Serv., 479 F.3d 1024 (9th Cir. 2007), vacated, 506 F.3d 717. The panel opinion 26 reversed the district court’s grant of summary judgment on the RFRA issue, as well as the 27 single NEPA claim regarding risks posed to human health from the ingestion of snow made 28 from reclaimed wastewater. -5- 1 The case proceeded to en banc review, where the en banc Ninth Circuit Court of 2 Appeals affirmed the district court’s grant of summary judgment and entry of judgment in 3 favor of the defendants in all respects. Navajo Nation, 535 F.3d at 1080 (“We affirm the 4 district court’s entry of judgment in favor of the Defendants on the RFRA claim, and the 5 district court’s grant of summary judgment to the Defendants on the NEPA and the NHPA 6 claims.”). As to the single NEPA claim concerning the risks posed to human health from the 7 ingestion of snow made from reclaimed wastewater—the claim for which the district court 8 was reversed by the initial panel—the en banc Ninth Circuit noted that “Plaintiffs raised this 9 claim for the first time in their motion for summary judgment” and held that “[b]ecause the 10 [plaintiffs] failed sufficiently to present this NEPA claim to the district court and also failed 11 to appeal the district court’s denial of their motion to amend the complaint to add this NEPA 12 claim, the claim is waived on appeal.” Id. Following the Ninth Circuit’s en banc decision, 13 the Navajo Nation plaintiffs filed a petition for writ of certiorari with the United States 14 Supreme Court, which was denied on June 8, 2009. See Navajo Nation v. United States 15 Forest Serv., 129 S. Ct. 2763 (2009). 16 On September 9, 2009, Plaintiffs filed the instant litigation. In this case, Plaintiffs The 17 Save the Peaks Coalition, Kristin Huisinga, Clayson Benally, Sylvan Grey, Don Fanning, 18 Jeneda Benally, Frederica Hall, Berta Benally, Rachel Tso, and Lisa Tso have filed a 19 Complaint against Defendants the United States Forest Service and Earl Stewart, in his 20 official capacity as Forest Supervisor for the Coconino National Forest pursuant to NEPA. 21 (See Doc. 1). On December 3, 2009, this Court granted the Snowbowl’s Motion to Intervene 22 as a Defendant. (Doc. 19). 23 Plaintiffs’ Complaint alleges several NEPA violations. Count One alleges that “the 24 FEIS does not contain a reasonably thorough discussion of the significant aspects of the 25 probable environmental consequences of the project—the FEIS ignores the possibility of 26 children (and others) eating snow made from reclaimed wastewater.” (Doc. 1, p. 12). Count 27 Two alleges that “by failing to analyze impacts of eating snow made from reclaimed sewer 28 water, the [Forest Service] failed to ensure the scientific integrity of its analysis.” (Id., p. 14). -6- 1 Count Three alleges a “failure to disseminate quality information” on the part of the Forest 2 Service. (Id., p. 15). The current Plaintiffs ask that the Court find that the Defendant's 3 actions were “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance 4 with law; and/or [] without observance of procedure required by law, as mandated by the 5 APA.” (Id., p. 16). Plaintiffs also request injunctive relief in the form of (1) a finding by this 6 Court that the FEIS was inadequate as a matter of law; (2) a finding that the Forest Service 7 violated NEPA in approving the Snowbowl improvement project; (3) the issuance of a 8 mandatory injunction that would stay all action in furtherance of the Snowbowl improvement 9 project until the Forest Service can comply with all applicable laws and regulations; and (4) 10 hold that the Forest Service action was unlawful and set it aside. (Id.) 11 On February 24, 2010, Plaintiffs filed a Motion for Leave to Amend Complaint, (Doc. 12 39), in order to add an additional Count alleging that the Forest Service “failed to consider 13 significant new information” since the ROD was issued in February 2005, in violation of 14 NEPA. On September 22, 2010, that Motion was denied as untimely and lacking good cause. 15 (Doc.135). 16 On March 12, 2010, Plaintiff filed a Motion for Summary Judgment on all Counts. 17 (Doc. 74). On April 2, 2010, Intervenor-Defendant Snowbowl filed a Motion to Strike 18 Plaintiff's Citation to the Vacated Ninth Circuit Panel Opinion. (Doc. 85). On April 9, 2010, 19 the Snowbowl filed a Motion for Summary Judgment, in which it argued that Plaintiffs 20 lacked standing under Article III of the U.S. Constitution, that Plaintiffs failed to exhaust 21 their administrative remedies, that Plaintiffs’ claims are barred by the doctrine of claim 22 preclusion, or res judicata, and that the NEPA claims fail on the merits. (Doc. 88). On April 23 9, 2010, the Federal Defendants also moved for summary judgment. (Doc. 92). The Federal 24 Defendants argue that Plaintiffs lack standing, have failed to exhaust their administrative 25 remedies, that Plaintiffs’ claims are barred by the equitable doctrine of laches, and that the 26 Federal Defendants complied with NEPA. (Id.) On May 18, 2010, Plaintiffs filed a Motion 27 to Strike the reply briefs filed by the Federal Defendants and Intervenor-Defendant 28 Snowbowl on the grounds that Defendants have improperly introduced new evidence in their -7- 1 reply and that such evidence is outside the administrative record and that Defendants’ reply 2 briefs are unrelated to their Motions for Summary Judgment and are instead focused on 3 Plaintiffs’ Summary Judgment Motion—therefore constituting impermissible sur-replies. 4 (Doc. 101). On May 25, 2010, this Court issued an Order directing the Parties to submit 5 supplemental briefing on the issue of whether this “lawsuit is barred by the doctrine of claim 6 preclusion or res judicata.” (Doc. 102). The Court further Ordered that “as part of the 7 supplemental briefing, the Parties are directed to discuss whether privity exists between 8 Plaintiffs in this lawsuit and the plaintiffs in the case of Navajo Nation v. United States 9 Forest Serv., 408 F. Supp. 2d 866 (D. Ariz. 2006), affd, 535 F. 3d 1058 (9th Cir. 2008)(en 10 banc), cert. denied, 129 S. Ct. 2763 (2009). Specifically, the Parties should address the fourth 11 and fifth exceptions to the rule against nonparty preclusion as set forth by the United States 12 Supreme Court in Taylor v. Sturgell, 128 S.Ct. 2161, 2172-73(2008) (“a nonparty is bound 13 by a judgment if she assume[d] control over the litigation in which that judgment was 14 rendered... [and] a party bound by a judgment may not avoid its preclusive force by 15 relitigating through a proxy”).” (Id.) On June 21, 2010, the Parties’ supplemental briefs 16 were filed with the Court. (Docs. 107, 108, 109). 17 In September 2010, the Flagstaff City Council held a series of meetings in which it 18 considered the possibility of amending Snowbowl’s contract to allow it to purchase 19 “recovered reclaimed” water for snowmaking. Recovered reclaimed water is approved for 20 use as drinking water and if Snowbowl were to make snow using recovered reclaimed water, 21 the Plaintiffs' claims would likely be moot. On September 16, 2010, Intervenor Defendant 22 Snowbowl filed a Supplement to its Reply in Support of its Cross-Motion for Summary 23 Judgment concerning presentations made by Plaintiffs before the Flagstaff City Council. 24 (Doc. 133). In the supplement, Snowbowl argued that statements by the Plaintiffs at the 25 Flagstaff City Council urging the Council not to allow Snowbowl to purchase recovered 26 reclaimed water for snowmaking warranted dismissal of the lawsuit under the doctrine of 27 unclean hands. Plaintiffs filed a response countering that their statements did not warrant 28 dismissal. -8- 1 II. LEGAL STANDARD 2 The Ninth Circuit has endorsed the use of summary judgment motions under Rule 56 3 of the Federal Rules of Civil Procedure for review of agency actions under the 4 Administrative Procedure Act (“APA”). Nw. Motorcycle Ass’n v. U.S. Dep’t of Agric., 18 5 F.3d 1468, 1471-72 (9th Cir. 1994). The court’s role is not to resolve facts, but to “determine 6 whether or not as a matter of law the evidence in the administrative record permitted the 7 agency to make the decision it did.” Occidental Eng’g Co. v. Immigration & Naturalization 8 Serv., 753 F.2d 766, 769 (9th Cir. 1985). The administrative agency itself is the fact-finder; 9 summary judgment is appropriate for determining “the legal question of whether the agency 10 could reasonably have found the facts as it did.” Id. at 770. Under the APA, questions of 11 law are reviewed de novo by the Court. See 5 U.S.C. § 706; Memorial, Inc. v. Harris, 655 12 F.2d 905, 911 (9th Cir. 1980) (“under the APA review provisions it is the Court which 13 decides all relevant questions of law”). “Judicial review of agency decisions under NEPA 14 . . . is governed by the [APA], which specifies that an agency action may be overturned only 15 where it is found to be ‘arbitrary, capricious, an abuse of discretion, or otherwise not in 16 accordance with law.’” Native Ecosystems Council v. Dombeck, 304 F.3d 886, 891 (9th Cir. 17 2002) (quoting 5 U.S.C. § 706(2)(A)). 18 III. Defendants’ Jurisdictional Claims 19 As an initial matter, Defendants argue that the Court should dismiss this case for lack 20 of jurisdiction. Defendants raise a number of jurisdictional arguments any one of which 21 could dispose of this case without reaching the merits of the underlying NEPA claims. These 22 are addressed below. 23 A. Standing 24 The Defendants in this case argue that the Plaintiffs lack standing to bring this lawsuit. 25 To establish standing a plaintiff must show that: (1) he has suffered an injury in fact; (2) the 26 injury is fairly traceable to the conduct of the defendant; and (3) a favorable federal court 27 decision would be likely to redress the injury. Pit River Tribe v. U.S. Forest Service, 469 28 F.3d 768, 778 (9th Cir. 2006). -9- 1 Defendants argue that the Plaintiffs have not satisfied the “injury in fact” element 2 because Plaintiffs either do not recreate in the Snowbowl SUP area in which snowmaking 3 will take place or do not recreate it in ways that make it likely that they will ingest snow 4 made with reclaimed water. Plaintiffs respond that the “injury in fact” element of Article III 5 standing in a NEPA case is satisfied if the plaintiff has an aesthetic or recreational interest 6 in the particular place and that interest will be impaired by the defendant’s conduct. See, e.g., 7 White Tanks Concerned Citizens v. Strock, 563 F.3d 1033, 1038 (9th Cir. 2009); Friends of 8 the Earth v. Laidlaw Envtl. Servs., 528 U.S.167, 183, 120 S.Ct. 693 (2000). All of the 9 Plaintiffs use and enjoy the Snowbowl area for recreational and aesthetic purposes; they 10 claim that their recreational and aesthetic enjoyment of the area will be diminished if the 11 project goes forward and trees are cleared, a pipeline is run up the mountain and a massive 12 catch basin for reclaimed water is installed and if potentially unsafe snow made from 13 reclaimed water is used at Snowbowl. Plaintiffs argue that these interests are sufficient to 14 satisfy the “injury in fact” requirement. 15 Plaintiffs’ complaint, however, is specifically that the Forest Service failed to properly 16 consider and assess the possible health effects of people ingesting snow made from reclaimed 17 water. So while Plaintiffs may have a general aesthetic and environmental interest in the 18 Snowbowl environment that will be affected by cleared trees, running pipelines and catch 19 basins, those broader aesthetic and environmental interests would not give them standing to 20 assert the specific claim brought in this case. Plaintiffs’ recreational interests in the 21 Snowbowl, however, could give them standing to assert their NEPA claim, if those 22 recreational interests are imperiled by the alleged insufficiency of the EIS. See, e.g., 23 National Park and Conservation Ass’n v. Stanton, 54 F. Supp.2d 7, 15 (D.D.C. 1999). All 24 of the Plaintiffs in this case live in Flagstaff or near the Snowbowl and all of them recreate 25 at Snowbowl – that they either ski, hike, snowshoe, gather snow, or play in the snow – at 26 27 28 - 10 - 1 Snowbowl.1 One of the Plaintiffs, Kristin Huisinga has even stated that she eats snow at 2 Snowbowl and Plaintiff Clayson Benally, has asserted that he bathes in the snow and uses 3 the snow there to make essential water/oil preparations used in healing ceremonies. Plaintiff 4 Don Fanning says that he hikes and throws snow at Snowbowl. 5 Certainly, Plaintiffs who eat snow or bathe in the snow at Snowbowl have a suffered 6 a concrete injury in fact if the Forest Service failed to properly consider the health effects of 7 ingesting snow made from reclaimed water on Snowbowl. Defendants stress that even if a 8 few of the Plaintiffs may satisfy the standing requirement, not all of them do because they 9 have not demonstrated that they are likely to ingest snow at the site where the snow made 10 from reclaimed water will be used. As an initial matter, once one of multiple plaintiffs is 11 found to have standing, other plaintiffs’ lack of standing is irrelevant for purposes of 12 determining whether to dismiss the suit on that basis. Arlington Heights v. Metropolitan 13 Housing Development Corp, 429 U.S. 252, 264, 97 S.Ct. 555 (1977) (“we have at least one 14 individual plaintiff who has demonstrated standing. . .”); Id. at n.9 (“ Because of the presence 15 of this plaintiff, we need not consider whether the other individual and corporate plaintiffs 16 have standing to maintain the suit.”). Moreover, Defendants are incorrect that Plaintiffs have 17 to essentially demonstrate that they have concrete plans to go eat snow at the SUP area next 18 year in order to have standing in this case. The Plaintiffs' recreational interests in skiing, 19 snowboarding, snowshoeing, hiking and other activities on Snowbowl provide a sufficient 20 basis for standing since such recreational interests would be imperiled if the Forest Service 21 failed to properly consider the health effects of ingesting reclaimed water. See, e.g., Florida 22 23 1 24 25 26 27 28 The fact that some of the Plaintiffs allege only that they have recreated in the "Snowbowl" area, rather the specific SUP area in which snow made from reclaimed water will be used does not deprive them of standing. Plaintiffs have clearly stated that they recreate in the Snowbowl. The Snowbowl is a 777 acre area, 205 acres of which will have snow made from reclaimed water. Plaintiffs' claims thus are not like those of the Plaintiffs in Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), who objected to 4500 acres of mining on a 5.5 million acres who only vaguely alleged that their enjoyment of federal lands in the vicinity of these million of acres had been adversely affected. - 11 - 1 Public Interest Research Group Citizen Lobby, Inc. v. EPA, 386 F.3d 1070 (11th Cir. 2004) 2 (Plaintiffs for whom the aesthetic and recreational values of the area will be lessened by the 3 degradation of water quality have standing to challenge EPA review of water standards, 4 including people who canoe and fish in waterbodies delisted from impaired waters list); 5 Sierra Club, Lone Star Chapter v. Cedar Point Oil Co. Inc., 73 F.3d 546 (5th Cir. 1996) 6 (plaintiffs who lived near bay where "produced water" would be discharged, and used the bay 7 for recreation and expressed concern that "produced water" would impair their enjoyment 8 of activities because these depended on good water quality had alleged an injury in fact). 9 Defendants also argue that the injury is not actual or imminent, but rather conjectural 10 or hypothetical. Of course, in this case none of the Plaintiffs has yet been injured by 11 ingesting snow made from reclaimed water and it is unclear when or if such an injury will 12 occur. The Supreme Court has held, however, that "threatened injury" will satisfy the injury 13 in fact requirement for standing. Valley Forge Christian College v. Americans United for 14 Separation of Church and State, Inc., 454 U.S. 472, 464 (1982). All of the Plaintiffs in this 15 case have indicated that they recreate on Snowbowl. Ms. Huisinga, for example, has stated 16 that she goes to the Snowbowl around thirty times per year and that she has a specific plan 17 to recreate in the Snowbowl area in April 2010. Mr. Benally says he goes to the Snowbowl 18 approximately ten times a year Mr. Fanning testified that in the previous year he had gone 19 to the Snowbowl more than ten times during the off-ski season and a couple of times during 20 the ski season. Plaintiffs' injury is thus neither conjectural nor hypothetical. 21 The Defendants do not directly question that Plaintiffs' alleged injury is traceable to 22 the conduct of the Defendant, other than to state that there is no concrete injury. The injury 23 the Plaintiffs have alleged is in any event traceable to the U.S. Forest Service's alleged failure 24 to consider the health effects of ingesting reclaimed water. And a decision by this Court that 25 the Forest Service needs to give further consideration of the health effects of ingesting 26 reclaimed snow would require additional review by the agency that could influence its 27 decision. This satisfies the requirement that a favorable decision would redress the injury. 28 Citizens for Better Forestry v. U.S. Dep't of Ag., 341 F.3d 961, 975-76 (9th Cir. 2003) - 12 - 1 (quoting Public Citizen v. Dept.of Transp., 316 F.3d 1002,1019 (9th Cir. 2003) and citing 2 Hall v. Norton, 266 F.3d 977 (9th Cir. 2001)). 3 In addition, Plaintiffs have established a procedural injury. To establish a procedural 4 injury a plaintiff must allege that an agency violated procedural rules; 2) that these rules 5 protect a plaintiff's concrete interests; and 3) that it is reasonably probable that the challenged 6 action will threaten their concrete interests. City of Sausalito v. O'Neill, 386 F.3d 1186 (9th 7 Cir. 2004) (citing Citizens for Better Forestry, 341 F.3d at 969-70). Again, Plaintiffs' 8 recreational interests are "concrete" and sufficiently threatened by the Forest Service's 9 alleged failure to properly consider the health effects of ingesting snow in preparing its 10 environmental impact statement.2 11 B. Exhaustion of Remedies 12 Defendants also argue that the Plaintiffs failed to exhaust their administrative 13 remedies because they did not specifically comment on the snow ingestion issue in response 14 to the Draft Environmental Impact Statement and did not raise that issue in their appeals of 15 the Record of Decision to the Forest Service. Defendants argue that while the Plaintiffs have 16 made comments and filed appeals about the Snowbowl upgrade, their comments and appeals 17 were not specific enough to the issue of human ingestion of snow made with reclaimed water 18 to put the Forest Service on notice and thus exhaust this claim. 19 Under the Forest Service regulations, a person must exhaust all administrative appeal 20 procedures, including submitting substantive comments and an appeal of the agency action. 21 This procedure allows the Forest Service to give the issue meaningful consideration and to 22 23 24 25 26 27 28 2 The Court also finds that the Save the Peaks Coalition has organizational standing. An association has standing when 1) its members would otherwise have standing to sue in their own right; 2) the interests at stake are germane to the organization's purpose; and 3) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. Citizens for Better Forestry, 341 F.3d at 976. As discussed above, the Coalition members do have standing. Part of organization's purpose is to preserve the environmental integrity of the land on which the Forest Service is proposing to use reclaimed water. The relief requested does not require the participation of individual members in the lawsuit. - 13 - 1 have the first opportunity to resolve concerns. Dep't. of Transp. v. Pub. Citizen, 541 U.S. 2 752, 764 (2004); Idaho Sporting Congress v. Rittenhouse, 305 F.3d 957, 965 (9th Cir. 2002). 3 Administrative remedies are exhausted "if the appeal, taken as a whole, provided sufficient 4 notice to the Forest Service to afford it the opportunity to rectify the violations that the 5 plaintiffs alleged. Great Basin Mine Watch v. Hankin, 456 F.3d 955, 968 (9th Cir. 2006). 6 The claims raised at the administrative appeal and in the federal complaint must be "so 7 similar" that the district court can ascertain that the agency was on notice of, and had an 8 opportunity to consider and decide, the same claims now raised in federal court. Native 9 Ecosystems Council, 304 F.3d at 889. 10 In this case, the Plaintiffs highlight a number of statements in their comments to the 11 Forest Service communicating their concerns regarding the health effects of ingesting 12 reclaimed water. Plaintiff Kristin Huisinga, for example, stated in her comments that 13 “[s]ignificant levels of human birth control and pharmaceutical products are not removed in 14 the process of water treatment. These compounds are likely to cause severe defects in . . . 15 humans. . .”. Plaintiff Clayson Benally in his comments stated “I’m also concerned about 16 chemicals and pharmaceuticals that aren’t currently tested for, in this grade of wastewater.” 17 He added that reclaimed water "has only now been looked at for endocrine disruptors. It is 18 my understanding that the full impact is still unknown. I urge you to have the foresight and 19 allow these findings to be included into the EIS. What affect [sic] will this have on people 20 that may ingest this artificial snow.” Plaintiff Jeneda Benally states in her comments that 21 “with known endocrine disrupters in the water, who will be responsible for any sickness that 22 a child may develop from ingestion of effluent snow?” Plaintiff Don Fanning states in his 23 comments that “we’ll be dealing with treated sewage that is undiluted with fresh water and 24 people who will be falling in great frozen piles of the stuff and probably accidentally 25 swallowing some. Not to speak of children and even adults who indulge in the winter 26 tradition of eating snow . . .” . 27 Defendants claim that the Plaintiffs' comments are not sufficiently specific on the 28 issue of health effects of ingesting snow made from reclaimed water. Some of these - 14 - 1 comments, however, particularly those of Plaintiffs Clayson and Jeneda Benally and Don 2 Fanning are specific on this issue. Moreover, in order to provide sufficient notice a claimant 3 need only alert the agency in "general terms, rather than with precise legal formulations." 4 Rittenhouse, 305 F.3d at 965. As one Court has put it, “there is no requirement that an 5 intervenor must make every specific legal claim in the comment period or forfeit the right 6 to bring a case in federal court. Rather a party need only alert agency to its contention." 7 Earth Island Institute v. Morse, 2009 WL 2423478 at *4 (E.D. Cal. 2009). The comments 8 highlighted by the Plaintiffs plainly alert the Forest Service to their concern regarding the 9 health effects of exposure to snow from reclaimed water, including concerns about the effects 10 of ingestion. 11 Plaintiffs Save the Peaks Coalition, Clayson Benally, Jeneda Bennally and Berta 12 Benally also referenced their concerns regarding the health effects from exposure to 13 reclaimed water in their administrative appeals. Their appeal stated: 17 The Forest Service never asked for interagency consultation on this matter from any substantial government authority including the National Institute of Child Health…the Forest Service cannot even pretend to speak with any authority on these human health matters and their response to comments raised concerning human health have been largely ignored in the FEIS. . . .The FEIS has failed to consider genetics and even pharmacogenomics in its insistence on pollutants. 18 Plaintiff Kristin Huisinga stated in her appeal that Dr. Catherine Popper’s study generated 19 data using water from Flagstaff showing that some compounds within an understudied group 20 called "endocrine disrupters” have detrimental effects of the thyroid and male reproductive 21 systems in salamanders and other amphibians and that these results have implications for 22 human health. Plaintiff Don Fanning stated that his appeal incorporated his comments, 23 which he attached. As previously noted Mr. Fanning's comments specifically expressed 24 concern regarding the health effects of ingesting snow. 14 15 16 25 Plaintiffs' comments and appeals clearly reference a general concern with the health 26 effects of exposure to reclaimed water and many explicitly express a concern regarding the 27 safety of ingesting reclaimed water. The fact that not all of the Plaintiffs explicitly state at 28 either the comment or appeal stage that they are concerned about the health effects of - 15 - 1 ingesting reclaimed snow does not mean that they failed to exhaust their remedies. Their 2 statements regarding the presence of chemicals and compounds in reclaimed water that could 3 have implications for human health are sufficiently similar to their claim regarding the health 4 effects of ingesting snow made from reclaimed water to give the Forest Service notice of 5 their current claims. See, e.g., Rittenhouse, 305 F.3d at 965-66 (group's comments 6 concerning effects of alternatives on "old growth habitat" and "old growth dependent 7 species" were sufficient to exhaust claims regarding regulations requiring the monitoring of 8 species population trends because, "it would be unreasonable to require that the Conservation 9 Groups incant the magic words 'monitor' and 'population trends' in order to leave the 10 courtroom door open"); see also Morse, 2009 WL 2423478 at *4 (plaintiff's concerns 11 regarding stand densities and overthining alerted Forest Service of allegations that the agency 12 had applied wrong methodology and figures to assess stand density). Moreover, a number 13 of courts assessing exhaustion of remedies in this context have stressed that compliance with 14 NEPA is a primary duty of the federal agency and that the onus should not fall on 15 commentators to point out flaws to preserve the ability to challenge actions. Native 16 Ecosystems Council, 222 F.3d at 559; Dep't of Transp. v. Public Citizen, 541 U.S. 752, 765 17 (2004). Considering the comments and appeal taken as a whole, the Court finds that the 18 Forest Service was on notice of Plaintiffs' concerns regarding the health effects of exposure 19 to snow made from reclaimed water and that Plaintiffs exhausted their administrative 20 remedies. 21 C. 22 Defendants also argue that the claims of some or all of the Plaintiffs are barred by the 23 doctrine of res judicata because they were or could have been brought in the 2005 Navajo 24 Nation litigation. To establish res judicata, the following elements are necessary 1) identity 25 of claims; 2) a final judgment on the merits; and 3) privity between the parties. Hells Canyon 26 Preservation Council v. U.S Forest Service, 402 F.3d 683, 686 (9th Cir. 2005). Res Judicata 27 To determine whether two lawsuits involve the same claim, the court looks at four 28 criteria: 1) whether the two claims arise out of the same transactional nucleus of operative - 16 - 1 facts; 2) whether the rights or interests established in the prior judgment would be destroyed 2 or impaired by prosecution of the second action; 3) whether the two suits involve 3 infringement of the same right and 4) whether substantially the same evidence is presented 4 in the two actions. Mpoyo v. Litton Electro-Optical Systems, 430 F.3d 985, 987 (9th Cir. 5 2005). The first factor, however, is considered controlling. Id. at 430 F.3d at 988. 6 The Plaintiffs' claims in this case are essentially that the Forest Service failed to 7 consider and address the health effects of ingesting snow made from reclaimed water when 8 preparing the FEIS and approving the Snowbowl upgrade project. The Plaintiffs in the 2005 9 Navajo Nation lawsuit attempted to amend their complaint to add this same claim. The 10 District Court denied the motion to amend, and its holding was ultimately upheld by the en 11 banc Ninth Circuit Court of Appeals. Plaintiffs deny that their current claims and the claims 12 of the Plaintiffs in the Navajo Nation litigation arise out of the same nucleus of operative 13 facts. They base their argument in part on the en banc panel opinion which found that the 14 Navajo Nation plaintiffs' complaint "did not include this NEPA claim or the factual 15 allegations upon which the claim rests . . ." 535 F.3d at 1079. Whether two events are part 16 of the same nucleus of operative facts, however "depends on whether they are related to the 17 same set of facts and whether they could be conveniently tried together." Mypoyo, 430 F.3d 18 at 987. The fact that the Navajo Nation plaintiffs failed to state facts sufficient to raise the 19 claim asserted by the current plaintiffs does not mean that the claim did not arise from the 20 same nucleus of operative facts. The Navajo Nation plaintiffs, like the Plaintiffs in this case, 21 challenged the Forest Service's action in preparing the FEIS and approving the project under 22 NEPA. The Navajo Nation decision addressed the environmental impact of using reclaimed 23 water to make snow. 408 F. Supp.2d at 876. The plaintiffs in the Navajo Nation case even 24 attempted to amend their complaint to add claims of the Plaintiffs in this case indicating that 25 these were related to their other claims and could conveniently be tried together. Therefore, 26 the two claims do arise from the same nucleus of operative fact and the "identity of claims" 27 element is satisfied. 28 Plaintiffs also deny that the Navajo Nation litigation reached a final judgment on the - 17 - 1 merits of the claim because the Ninth Circuit Court of Appeals only affirmed the district 2 court ruling denying the Plaintiff's motion to amend the claim. They argue that court's ruling 3 means that the claim was never properly before the court and so not decided on the merits 4 for purposes of res judicata. Plaintiffs cite Hells Canyon Preservation Council v. U.S. Forest 5 Service in support of their claim. 402 F.3d 683. In Hells Canyon, a Plaintiff voluntarily 6 withdrew a claim before the court ruled on summary judgment. The Ninth Circuit Court of 7 Appeals ruled that because the action did not contain the claim there was no final judgment 8 on its merits for purposes of res judicata. 403 F.3d at 687. The claim in this case, however, 9 was not voluntarily withdrawn by the plaintiffs in the Navajo Nation case. Rather the 10 plaintiffs attempted to amend their complaint to add the claim and the court denied their 11 motion to amend. The Ninth Circuit has ruled that "[d]enial of leave to amend in a prior 12 action based on dilatoriness does not prevent application of res judicata in a subsequent 13 action." Mpoyo, 430 F.3d at 988-89 (holding that denial of a motion for leave to amend a 14 complaint to add claims constituted a final judgment on the merits of the claim for res 15 judicata purposes). Moreover, "[t]he overwhelming weight of Ninth Circuit precedent stands 16 for the proposition that res judicata bars not only all claims that were actually litigated, but 17 also claims that could have been asserted in the prior action, as long as the prior action 18 resulted in a final judgment on the merits." Baker v. Voith Fabrics US Sales, Inc., 2007 WL 19 1549919 at * 5 (E.D. Wash. 2007), citing Tahoe Sierra Preservation Council, Inc. v. Taho 20 Reg'l Planning Agency, 322 F.3d 1064, 1078 (9th Cir. 2003); Stewart v. U.S. Bancorp, 297 21 F.3d 953, 956 (9th Cir. 2002); Federated Dept. Stores, Inc. v. Moitie, 452 U.S. 394, 396 22 (1981). Thus, the Court finds that there was a final ruling on the merits for purposes of res 23 judicata. 24 The final inquiry is whether the Plaintiffs in this lawsuit are in privity with the 25 plaintiffs from the earlier Navajo Nation litigation. Generally a non-party is not precluded 26 by res judicata from bringing claims that were or could have been brought in a previous suit 27 unless one of the following exceptions applies: 1) one person has agreed to be bound by the 28 determination of issues in an action between others; 2) a preexisting substantive legal - 18 - 1 relationship exists between the person to be bound and a party to the judgment; 3) a nonparty 2 was adequately represented by someone with the same interests who was a party to the suit; 3 4) a nonparty assumed control over the litigation in which that judgment was rendered; 5) 4 a party bound by a judgment relitigates through a proxy and 6) certain circumstances under 5 a special statutory scheme such as bankruptcy and probate. Taylor v. Sturgell, 553 U.S. 880 6 (2008). 7 Only the third, fourth, or fifth exceptions could potentially apply in this case. The 8 Defendants point to a number of connections between the Plaintiffs in this case and the prior 9 litigation to establish that the current Plaintiffs were either adequately represented by parties 10 in the Navajo Nation lawsuit, assumed control of the prior litigation or are really now serving 11 as proxies for the plaintiffs in the first lawsuit. Defendants stress that the plaintiffs in this 12 and the prior suit are represented by the same counsel, Mr. Howard Shanker, and that Mr. 13 Shanker prepared the administrative appeal for some of the plaintiffs in both cases. 14 Defendants also stress that some of the Plaintiffs in this litigation were either members of or 15 associated with organizations who were plaintiffs in the prior lawsuit such as the Sierra Club 16 and the Navajo Nation. Defendants also point to the fact that some of the Plaintiffs have 17 solicited money to pay for the prior litigation and organized and attended protests and events 18 in support of the previous litigation. Defendants also point to statements by attorneys for the 19 plaintiffs in the Navajo Nation litigation stating after termination of that earlier lawsuit that 20 they were considering other possible legal avenues, including one claim that the Ninth 21 Circuit Court of Appeals had not addressed. Defendants also highlight a statement on the 22 Save the Peaks Website calling the earlier lawsuit "our prior court case". 23 The Court is not convinced, however, that there is privity between all of the Plaintiffs 24 in this and the Navajo Nation lawsuit. As an initial matter, other than to point out that the 25 Plaintiffs in this case are represented by the same lawyer who represented the plaintiffs in 26 Navajo Nation, the Defendants have not alleged any connection between the plaintiffs in the 27 first lawsuit and two of the Plaintiffs in this case, Lisa Tso and Frederica Hall. See Earth 28 First v. Block, 569 F. Supp. 415, 421 (D. Oreg. 1983) ("Even if this were the case, there are - 19 - 1 parties to this action which were not parties to [the prior litigation] and were not in privity 2 with any party in that action. Since those non-parties cannot be bound by the prior decision, 3 the court would proceed in any event to order compliance with NEPA.") Having the same 4 counsel, without more, is not sufficient to establish privity. Southwest Voter Registration 5 Education Project v. Shelley, 344 F.3d 882, 904 (9th Cir. 2003). 6 In addition, none of the connections that the Defendants identify are sufficient to 7 establish that the Plaintiffs in this litigation were represented by the plaintiffs in Navajo 8 Nation. Some of the Plaintiffs in this litigation were members of or affiliated with the 9 Navajo Nation, the Sierra Club and the Center for Biological Diversity, organizations that 10 served as plaintiffs in the Navajo Nation case. Those organizations, however, were not suing 11 on behalf of a class or in representation of other members so that they are not in privity with 12 their members. See Taylor, 553 U.S. at 894; Cf. Yankton Sioux Tribe v. U.S. Dept. of 13 Health and Human Services, 533 F.3d 634, 641 (8th Cir. 2008). A statement on the Save the 14 Peaks website calling the earlier litigation "our prior court case", although suspicious, does 15 not without more establish that all of the Plaintiffs in this litigation were adequately 16 represented by the plaintiffs in the prior litigation. 17 The fact that Plaintiffs in this case either helped raised money for or organized and 18 participated in rallies and events in support of the plaintiffs in the Navajo Nation lawsuit does 19 not come close to establishing that the plaintiffs in this case "assumed control"over the 2005 20 litigation. Rather, "to have control of litigation requires that a person have effective choice 21 as to the legal theories and proofs to be advanced in behalf of the party to the action . . . .It 22 is not sufficient, however, that the person merely contributed funds or advice in support of 23 the party, supplied counsel to the party, or appeared as amicus curiae." Virginia Hosp. Ass'n 24 v. Baliles, 830 F.2d 1308, 1332 (4th Cir. 1987). Defendants cite cases in which the payment 25 of legal fees was mentioned by the court as evidence of control. In those cases, however, 26 there was significant additional involvement by the party determined to be bound by the 27 judgment. See Montana v. U.S., 440 U.S. 147 (1979) (government had active role in 28 reviewing and approving filings); Jones v. Craig, 212 F.2d 187 (6th Cir. 1954) (composer - 20 - 1 assisted in preparation of defense and testified as witness in copyright infringement action). 2 As for the claim that the current Plaintiffs are serving as proxies for the plaintiffs in 3 the prior suit, Defendants offer no evidence other than inferences based on statements by 4 counsel for the Navajo Nation plaintiffs about pursuing other legal avenues including a claim 5 that the Ninth Circuit did not rule on, as well as the current Plaintiffs' awareness and support 6 for the prior litigation. Although Defendants raise a number of questions about how 7 intertwined the plaintiffs from the Navajo Nation litigation are with the current Plaintiffs, 8 Defendants have not established that the former are using the latter as a proxy. The Court thus finds that insufficient evidence of privity has been provided so that the 9 10 Plaintiff's claims are not barred by the doctrine of res judiciata. 11 IV. Laches 12 Defendants also claim that Plaintiffs' claims are barred by the doctrine of laches. As 13 an initial matter, the Court notes that the doctrine of laches is only sparingly invoked in 14 environmental cases. See Preservation Coaltion v. Pierce, 667 F.2d 851, 854 (9th Cir. 1982). 15 To establish laches as an affirmative defense, the party invoking the doctrine must show: 1) 16 that the opposing party lacked diligence in pursuing claims; and 2) that the party invoking 17 the doctrine suffered prejudice from that lack of diligence. Apache Survival Coal. v. United 18 States, 21 F.3d 895, 905 (9th Cir. 1994). Whether laches bars a claim depends on the 19 particular facts and circumstances of the individual case. Ocean Advocates v. U.S. Army 20 Corps of Engineers, 402 F.3d 846 (9th Cir. 2005). 21 Defendants' argument pertaining to laches is that all of the Plaintiffs in this case were 22 aware of but failed to join the Navajo Nation lawsuit brought in 2005 and waited to bring this 23 lawsuit until that first suit was resolved. Defendants argue that they are prejudiced, because 24 they have been forced to litigate similar challenges to the same project challenged in a prior 25 suit. Defendant Snowbowl also says that it has expended a great deal of resources on both 26 the prior litigation and on the Snowbowl project before this action was filed. 27 The Plaintiffs do not deny that they were aware of and declined to join the 2005 28 lawsuit, waiting to file their current claims until the Navajo Nation litigation ended. Instead, - 21 - 1 they argue that there has been no lack of diligence on their part since there has been no final 2 agency authorization in this case. Plaintiffs cite Ocean Advocates v. U.S. Army Corp of 3 Engineers, 402 F.3d 846 (9th Cir. 2005) in support of their argument that they did not lack 4 diligence. In Ocean Advocates, the Ninth Circuit Court of Appeals reversed a district court 5 ruling that Plaintiffs were barred by the doctrine of laches from challenging a permit issued 6 by the Army Corps of Engineers to extend a pier. The Army Corps of Engineers had issued 7 the permit in 1996 and Plaintiffs waited until 2000 to initiate their lawsuit. Plaintiffs cite 8 language from Ocean Advocates where the court notes that it had “held that delays of eight 9 to ten years did not demonstrate lack of diligence." 402 F.3d at 863 10 A closer look at Ocean Advocates, however, indicates that the circumstances 11 discussed in that case differ significantly from those in this case. The court in Ocean 12 Advocates outlined the test for assessing a party's diligence, stating it should consider: 1) 13 whether the plaintiff attempted to make its position known to the defendant before filing suit; 14 2) the defendant's response to the plaintiff and; 3) whether developments, such as 15 construction or other visible changes can "motivate [a party] to investigate whether any legal 16 basis exist[s] for challenging the project." 402 F.3d at 862. As other courts have noted these 17 factors cannot always be neatly applied to the facts of an individual case. See Preservation 18 Coaltion, Inc., 667 F.2d at 854. 19 In assessing the plaintiff's diligence, the court in Ocean Advocates stressed that 20 plaintiffs had initiated contact with the Corps within one year of the permit being granted and 21 that it "maintained continued and consistent dialogue with the Corps until the Corps granted 22 the permit extension in 2000." 402 F.3d at 862. In addition, the project was effectively 23 halted by additions made to the threatened species list that required further environmental 24 review on the part of the Corps as well as permit extensions before the project could proceed 25 and that the Plaintiffs were communicating with the defendants about this. Id. Cases cited 26 by the Ocean Advocates court in support of the statement that an eight to ten year delay 27 would not necessitate a finding of laches involved circumstances in which either the nature 28 of the project or the status of the environment changed significantly after its initial approval - 22 - 1 so that Plaintiffs could not be faulted for failing to challenge the project earlier. Coalition 2 for Canyon Pres. v. Bowers, 632 F.2d At 780 (9th Cir. 1980) (seven-year delay in bringing 3 suit opposing four-lane road was not lack of diligence because initial proposal was a two-way 4 road and final approval for a continuous four lane road was not granted until four years after 5 initial approval and Plaintiffs began letter writing and petition circulation campaign for two- 6 lane road); Preservation Coalition, Inc., 667 F.2d at 854-55 (ten-year delay in bringing NEPA 7 action against HUD for impact of urban renewal on historical landmarks was not due to lack 8 of diligence, because buildings at issue were not placed on national register until several 9 years after project was approved and plaintiffs did not know that any historic buildings would 10 be demolished until shortly before they filed suit). 11 This case differs in a number of important ways from the circumstances described in 12 Ocean Advocates. First, the Plaintiffs in this case have not been engaged in an alternative 13 continued dialogue with the Forest Service since 2005 in an attempt to resolve their claims. 14 Rather, after participating in the comments and administrative appeal process, Plaintiffs 15 completely dropped communications with the Forest Service after 2005 until initiating this 16 lawsuit in 2009. Inexcusable delay has been found for shorter periods than the four year 17 delay in this case. See Jicarilla Apache Tribe v. Andrus, 687 F.2d 1324, 1338-39 (10th Cir. 18 1982) (three-year delay resulted in laches); National Parks and Conservation Ass'n v. Hodel, 19 679 F. Supp. 49, 53 (D.D.C. 1987) (same); City of Rochester v. U.S. Postal Service, 541 F.2d 20 967, 977 (2d Cir. 1976) (finding inexcusable delay when suit was filed less than two years 21 after the relevant agreement); Friends of Yosemite v. Frizzell, 420 F. Supp. 390, 397 (D. C. 22 Cal. 1976) (sufficient delay when suit was filed over three years after the project was 23 publicized and over two years after the relevant agency action), all cited in Apache Survival 24 Coalition v. U.S., 21 F.3d 895, 910 (9th Cir. 1994). 25 Second, neither the nature of the Snowbowl upgrade project nor the environment at 26 issue has changed fundamentally such that Plaintiffs only recently became aware of their 27 objections to the project. Rather, the Forest Service approved the use of reclaimed water for 28 snowmaking in 2005 and Plaintiffs have been aware of and opposed to this since that time. - 23 - 1 The final agency action for purposes of the APA occurred in February 2005 with the issuance 2 of the Record of Decision. Without this final decision, the 2005 Navajo Nation lawsuit 3 challenging the same FEIS that Plaintiffs now challenge could not have gone forward. 4 Plaintiffs are thus claiming that although the Forest Service issued a final decision in 2005 5 that could be and has in fact been reviewed by the district court and the Ninth Circuit, until 6 every last permit necessary for the project is issued, successive plaintiffs can continue to 7 initiate serial lawsuits against the Forest Service in connection with its decision approving 8 the Snowbowl improvement project. This makes little sense. As indicated above, although 9 there are limited circumstances in which a final agency action would not start the clock for 10 purposes of laches, those circumstances are not found in this case. 11 Perhaps the most significant difference, however, is the fact Plaintiffs sat by for years 12 while the lawsuit challenging the Forest Service decision on similar bases was initiated and 13 litigated by the Navajo Nation and other plaintiffs. Plaintiffs were admittedly aware of the 14 lawsuit and could have joined it, yet they elected instead to wait to bring their claims until 15 the initial lawsuit was resolved. In this respect, the Plaintiffs in this case are rather like the 16 plaintiffs in Apache Survival Coalition v. U.S, 118 F.3d 663 (9th Cir.1997) ("Apache 17 Survival II"), in which the Ninth Circuit Court of Appeals affirmed a district court ruling that 18 plaintiffs were barred by the doctrine of laches. In Apache Survival II, a coalition made up 19 of members of the Apache Tribe sought an injunction to cease construction of a system of 20 telescopes on Mount Graham in Arizona. The plaintiffs claimed that in approving a new site 21 for the project the Forest Service failed to comply with the National Historic Preservation 22 Act (“NHPA”). Only two years prior, a coalition made up of several environmental groups 23 had filed a lawsuit and successfully claimed that the new site was not authorized by 24 Congress. Congress eventually intervened and approved the new site for the telescope. 25 When the Apache Coalition later sought the injunction on the basis of a NHPA claim, the 26 district court interpreted the Apache Coalition’s failure to join the lawsuit by the 27 environmental coalition as lack of diligence and ruled that their claims were barred by the 28 doctrine of laches and the Ninth Circuit Court of Appeals affirmed. - 24 - 1 The Plaintiffs in this case, like the plaintiffs in Apache Survival II, failed to join a 2 prior lawsuit in which other plaintiffs raised similar claims. All of the Plaintiffs in this case 3 were aware of the other litigation and, as previously discussed, some of them were actively 4 supporting it through fundraising or generating awareness. The only answer offered by the 5 Plaintiffs for their failure to bring the lawsuit earlier is that they were not needed. It thus 6 appears that the Plaintiffs in this case like the Apache Survival II plaintiffs were "waiting to 7 bring suit until the challenges launched by other parties have failed," which the Ninth Circuit 8 found shows a lack of diligence warranting application of the doctrine of laches. See Apache 9 Survival II,118 F.3d at 666; see also Apache Survival I, 21 F.3d 895 at 909. 10 Plaintiffs further argue that their claims cannot be barred by laches because there has 11 been no prejudice in this case. Plaintiffs argue that prejudice in the environmental context 12 is generally measured by what Congress defines as prejudice. Coalition for Canyon Pres., 13 632 F.2d at 780. They thus argue that because the relief they seek is still practicable – 14 snowmaking from reclaimed water has not yet begun – there is no prejudice in this case. Of 15 course, the prejudice suffered by the Defendant is also relevant. As Plaintiffs acknowledged, 16 "[d]elay may be prejudicial if substantial work has been completed before the suit was 17 brought." Pres. Coalition, Inc., 667 F.2d at 855; see also Daingerfield Island Protective Soc'y 18 v. Lujan, 920 F.2d 32, 40 (D.C. Cir. 1990); Stow v. U.S., 696 F. Supp. 857, 863 (W.D.N.Y. 19 1988); Friends of Yosemite, 420 F. Supp. at 398. Defendant Snowbowl had expended a great 20 deal of resources on the Snowbowl upgrade project before this action was filed. As Plaintiffs 21 admitted at oral argument, the fact that the Snowbowl improvement project is almost 22 complete is problematic for purposes of prejudice in the laches context. Moreover, Plaintiffs 23 entirely ignore the burden on the Defendants of repeatedly litigating serial and similar claims. 24 Although litigation by itself is not considered prejudicial for purposes of laches, "successive 25 challenges, where one plaintiff awaits the outcome of another plaintiff's [lawsuit] before 26 bringing its own claim," Apache Survival II, 118 F.3d at 666 n.5, generates a burden of a 27 different kind that is unduly prejudicial for Defendants. 28 completion of the project coupled with the burden of serial and similar litigation is sufficient - 25 - The Court finds that the near 1 to establish prejudice for a laches defense here. 2 Plaintiffs fail to explain how their failure to join the prior case is materially 3 distinguishable from that of the plaintiffs in Apache Survival II, 3 and the Court finds that 4 Defendants will be sufficiently prejudiced to satisfy laches. Therefore, based on the particular 5 circumstances of this case, the Court finds that Defendants have established this affirmative 6 defense.4 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 At oral argument Plaintiffs argued that the fact that in 2008 the Ninth Circuit Court of Appeals found for the Navajo Nation plaintiffs on the same claims that they bring here excused their delay in bringing this litigation. The Ninth Circuit's ruling in 2008, however, does not excuse Plaintiff's failure to join the litigation in 2005. 4 Because the Court finds that Plaintiffs' claims are barred by the doctrine of laches and in the alternative finds against Plaintiffs on the merits of the NEPA claims, the Court only briefly addresses Defendants' other affirmative defense. In a supplement to its Reply in support of its cross motion for summary judgment, Defendants asserted that Plaintiffs' claims are also barred by the doctrine of unclean hands. Defendant Snowbowl pointed to statements by Plaintiffs to the Flagstaff City Council, which was considering amending the contract with Snowbowl to allow for the use of "recovered reclaimed" water for Snowmaking. Because none of the health concerns associated with plain "reclaimed water" apply to "recovered reclaimed" water, this change in the contract had the potential to moot this litigation. Some of the Plaintiffs, including Berta Benally, Clayson Benally, Jeneda Benally and Frederica Hall made statements before the City Council opposing amending the contract to allow for the use of "recovered reclaimed" water, citing a number of reasons, some even specifically stating that they did not want the use of potable water approved for snowmaking because they wanted the lawsuit to go forward. Defendant Snowbowl argues that this is evidence of unclean hands because it reveals that Plaintiffs are not really concerned about the health effects of snow made from reclaimed water, but are instead opposed to snowmaking from any source on Snowbowl so that this lawsuit is simply a pretext to delay project implementation. While the Court notes that the history of this case together with some of the Plaintiffs' comments against the use of potable water for snowmaking create an inference that the claims made in this case are a pretext for different aims, which if established might bar the claims on the basis of unclean hands (see Jicarilla Apache Tribe v. Andrus, 687 F.2d 1324, 1340 (10th Cir. 1982)), the evidence offered by Snowbowl is insufficient to establish this affirmative defense and bar the lawsuit. The Plaintiffs' comments included other credible reasons for opposing the use of recovered reclaimed water for snowmaking, including that this would be a poor use of a scarce resource. Contrary to Defendants' assertion, Plaintiffs' position in this suit regarding the health effects of reclaimed water does not per se preclude them from opposing the use of recovered reclaimed water for snowmaking. - 26 - 1 V. NEPA Claims 2 Although the Court finds that the claims in this case are barred by laches, the Court 3 also provides an alternative ruling on the merits of Plaintiffs' NEPA claims. When reviewing 4 an agency's FEIS, the Court applies the arbitrary and capricious standard. Native Ecosystems 5 Council, 304 F.3d at 891. A reviewing court must "consider whether the decision was based 6 on a consideration of the relevant factors and whether there has been a clear error of 7 judgment. . . . Although this inquiry into the facts is to be searching and careful, the ultimate 8 standard of review is a narrow one. The court is not empowered to substitute its judgment 9 for that of the agency." Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971). 10 The Court must determine whether the document contained a "reasonably thorough 11 discussion of the significant aspects of the probable environmental consequences." Idaho 12 Conservation League v. Mumma, 956 F.2d 1508, 1519 (9th Cir. 1992). Courts apply a "rule 13 of reason" standard when making this finding. Center for Biological Diversity v. United 14 States Forest Service, 349 F.3d 1157, 1166 (9th Cir. 2003). The agency must articulate a 15 "rational connection between the facts found and the choice made." Burlington Truck Lines 16 v. United States, 371 U.S. 156, 168, 83 S. Ct. 239, 246 (1962). Under the rule of reason 17 standard the Court reviews the agency to ensure it has taken a hard look at the environmental 18 effects of the proposed action. "Once satisfied that a proposing agency has taken a 'hard look' 19 at a decision's environmental consequences, the review is at an end." State of Cal. v. Block, 20 690 F.2d 761 (9th Cir. 1981). "[W]hile formal findings are not required, the record must be 21 sufficient to support the agency action, show that the agency has considered the relevant 22 factors and enable the court to review the agency's decision." Beno v. Shalala, 30 F.3d 1057, 23 1073 (9th Cir. 1994) "While [the Court] may not supply a reasoned basis for the agency's 24 action that the agency itself has not given, [the Court] will uphold a decision of less than 25 ideal clarity if the agency's path may reasonably be discerned." Bowman Transp., Inc. v. 26 Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 285 (1974), cited in River Runners for 27 Wilderness v. Martin, 2007 WL 4200677 at *13 (D. Ariz. 2007). 28 The Plaintiffs in this case allege that the FEIS does not contain a reasonably thorough - 27 - 1 discussion of the significant aspects of the probable environmental consequences of the 2 project because it ignores the possibility of children and others eating snow made from 3 reclaimed wastewater. As an initial matter, the Court notes that the Arizona District Court 4 as well as the Ninth Circuit in the Navajo Nation litigation previously determined that the 5 Forest Service complied with NEPA when considering the environmental impact of making 6 snow from reclaimed water. The District Court found that: 7 8 9 10 11 12 13 14 [T]he record shows that the Forest Service conducted a reasonable scientific analysis of the environmental impacts of the proposed snowmaking based on the best available scientific evidence. First and foremost, it is important for the Court to note that the Arizona Department of Environmental Equality (ADEQ") has adopted water quality standards for the direct reuse of reclaimed water aimed at protecting health and the environment. Furthermore, the ADEQ specifically allows Class A+ reclaimed water – the class of water to be used at the Snowbowl – for direct reuse in snowmaking. As such, the Forest Service properly relied, in part upon the ADEQ's determination that snowmaking is an acceptable and safe use of reclaimed water. In addition, the Forest Service evaluated extensive data monitoring Class A+ reclaimed water from the Rio de Flag WRF for wastewater constituent as well as monitoring for metals, organic chemicals and other parameters. 15 408 F. Supp.2d at 876. This opinion was affirmed by the en banc Ninth Circuit. 535 F.3d at 16 1080. Here, the Court takes note that Defendants filed a motion to strike Plaintiffs' 17 references to the initial Ninth Circuit opinion which reviewed the district court's ruling and 18 was ultimately overturned by the en banc Ninth Circuit decision. The en banc Ninth Circuit 19 Court ordered that the panel decision not be cited as precedent. To the extent Plaintiffs are 20 citing to the opinion to provide background on the case, they are permitted to do so. The 21 decision, however, is not binding upon this Court, which must conduct its own analysis of 22 Plaintiffs' NEPA claims. 23 Although the District Court has already found and the Ninth Circuit has confirmed 24 that the FEIS at issue in this case included a reasonable analysis of the environmental impact 25 of using reclaimed water for snowmaking, Plaintiffs now claim that the agency failed to take 26 the requisite hard look at the potential effects of ingesting snow made from reclaimed water. 27 They argue that nowhere in the FEIS does the Forest Service even acknowledge the 28 - 28 - 1 possibility that people, specifically children, who recreate in the snow made from reclaimed 2 water may ingest snow. For Plaintiffs to so narrow the critique of the FEIS after the courts 3 have already approved the agency's review of the environmental impact of snowmaking from 4 reclaimed water is a questionable approach to NEPA litigation. Swanson v. U.S. Forest 5 Service, 87 F.3d 339, 343-44 (9th Cir. 1996) (plaintiffs may not "fly speck" the FEIS and 6 hold it insufficient on the basis of technical deficiencies). Reviewing the FEIS, in any event, 7 it is clear that the agency's consideration of the impact of snow made from reclaimed water 8 on human health, including the possibility of ingestion was “reasonably thorough,” Idaho 9 Conservation League, 956 F.2d at 1519, such that the decision of the Forest Service to 10 approve of the use of reclaimed water for snowmaking was not arbitrary and capricious. 11 As noted, the Forest Service relied in part on the ADEQ's authorization of the use of 12 A+ grade reclaimed water for snowmaking. The FEIS notes that Class A+ reclaimed water 13 is deemed safe for unrestricted recreational uses, such as skiing. The FEIS includes the 14 following statement: 18 The State of Arizona allows Class A and A+ reclaimed water for direct reuse in snowmaking. Due to the relatively high risk of human exposure to potential contaminants in reclaimed water, ADEQ has developed strict and specific treatment requirements for reuse applications having higher degrees of public contact, such as skiing, that include secondary treatment, filtration, and disinfection. In meeting these requirements, the reclaimed water is considered acceptable for unrestricted recreational use. 19 The District Court explicitly approved of the Forest Service's reliance on ADEQ when 20 determining that the agency complied with NEPA in considering the environmental impact 21 of making snow from reclaimed water. Navajo Nation, 408 F. Supp. 2d at 876. The 22 Plaintiffs, however, fault the Forest Service for relying on Arizona's standards for the use of 23 reclaimed water rather than engaging in its own consideration of the possible risks of 24 ingestion. The Plaintiffs make a related claim that in relying on ADEQ's standards, the 25 Forest Service failed to ensure the scientific integrity of its environmental analysis as is 26 required by 40 C.F.R. §1502.24, and failed to provide accurate scientific analysis, expert 27 agency comments and public scrutiny. The Plaintiffs also claim that the Forest Service's 28 reliance on the ADEQ means that it failed to disseminate quality information on the potential 15 16 17 - 29 - 1 impact of ingesting snow made from Class A+ reclaimed water. The Plaintiffs claim that the 2 failure to take a hard look, to ensure the scientific integrity of the analysis and to disseminate 3 quality information was arbitrary, capricious, and an abuse of discretion or not otherwise in 4 accordance with law or without the procedure required by law. 5 U.S.C. §706(2)(D). 5 As an initial matter, NEPA and its implementing regulations assume state and federal 6 agency cooperation. 42 U.S.C.S. §4331(a)(2007). NEPA directs federal agencies to 7 incorporate "views of the appropriate Federal, State, and local agencies, which are authorized 8 to develop and enforce environmental standards." 42 U.S.C.S. §4332(C) (2007) (emphasis 9 added). ADEQ is the agency designated by the Arizona Legislature to enforce the Clean 10 Water Act. It is in connection with this function that ADEQ has developed the standards for 11 reclaimed water and established a permit program for processing and using different grades 12 of reclaimed water. The Forest Service's reliance on ADEQ's approval of snowmaking as 13 a use for A+ reclaimed water is in keeping with the "cooperative federalism" which 14 permeates water regulation under NEPA. New York v. United States, 505 U.S. 144, 167 15 (1992). Therefore, it is appropriate for the Forest Service to rely on ADEQ standards. See, 16 e.g., Friends of the Payette v. Horsehsoe Bend Hydroelectric Co., 988 F.2d 989, 993 (9th Cir. 17 1993) (Corps of Engineers properly relied on certification of compliance with state water 18 quality standards granted by Idaho DEQ in issuing environmental assessment and finding no 19 significant impact under NEPA); Border Power Plant Working Group v. Dep't of Energy, 20 260 F. Supp.2d 997, 1020-21 (S.D. Cal. 2003) (reliance on standards of another agency 21 designed to protect human health is appropriate in the NEPA process). 22 The Plaintiffs stress that although the ADEQ approved of the use of Class A+ 23 reclaimed water for snowmaking, this does not specifically mean that the state agency 24 approves of the ingestion of Class A+ reclaimed water. Rather the ADEQ prohibits the use 25 of reclaimed water for full immersion recreational activities, such as swimming or water 26 skiing, with a potential for ingestion. The ADEQ also prohibits the use of reclaimed water 27 for evaporative cooling or misting. Irrigation users of reclaimed water must also employ 28 application methods that reasonably preclude contact with drinking fountains, water coolers - 30 - 1 or eating areas. State regulations also require that wherever reclaimed water is used, signage 2 be posted, indicating that the water should not be ingested. Thus, the Plaintiffs argue that 3 it was not appropriate for the Forest Service to rely on the ADEQ's approval of the use of 4 Class A and A+ reclaimed water for "snowmaking" in assessing whether the snow could 5 safely be ingested. 6 The Forest Service, however, considered and discussed ADEQ's reclaimed water 7 grading system as well as state standards for issuing permits for the use of reclaimed water. 8 The agency noted that ADEQ's determination that a particular grade of reclaimed water was 9 appropriate for a particular use was made in a risk-based framework to protect public health 10 and minimize hazards associated with potential exposures. Recreational activities related to 11 snowmaking do not carry the same risk of exposure or ingestion as full immersion activities 12 such as swimming or waterskiing, or drinking reclaimed water from a drinking fountain. 13 Therefore, the fact that ADEQ does not approve of the use of reclaimed water for full 14 immersion activities such as swimming, does not approve of ingestion of reclaimed water 15 through a drinking fountain or does not approve of inhalation through misting and that it 16 requires signs warning people not to ingest the water, does not mean any and all ingestion 17 is considered unsafe. Rather, it is inconceivable that the state would approve of the use of 18 Class A and A+ reclaimed water for snowmaking without considering the likelihood of 19 exposure, including some ingestion, that comes with recreation associated with snowmaking. 20 Indeed, the FEIS notes that reclaimed water is deemed safe by the state for irrigation of crops 21 as well as for schoolground, residential and open landscape irrigation, all of which also 22 involve some risk of ingestion. It was not arbitrary and capricious for the Forest Service to 23 assume that the ADEQ, an organization tasked with developing and implementing standards 24 for water use, considered and accepted the relative risk of ingestion associated with 25 recreating in snow when it approved the use of Class A+ reclaimed water for snowmaking. 26 See Border Power Plant Working Group, 260 F. Supp.2d at1020-21. 27 Morever, although the Forest Service appropriately relied in part on state regulatory 28 standards regarding the use of Class A+ reclaimed water, this was not the extent of the - 31 - 1 agency's investigation and discussion regarding the safety of ingesting snow made from 2 reclaimed water. Rather, the Forest Service engaged in extensive discussion regarding the 3 safety of exposure to reclaimed water, including through ingestion. The Forest Service 4 considered, for example, federal regulatory standards for drinking water and found that the 5 reclaimed water satisfied EPA standards for all substances tested. The Forest Service also 6 considered that the EPA has explicitly mentioned snowmaking as a possible recreational use 7 for reclaimed water. The Forest Service also considered a number of studies and reports on 8 reclaimed water use, including a report that found that Class A+ reclaimed water was suitable 9 for crop irrigation even where the crops would be consumed raw, as well as a study regarding 10 the use of reclaimed water as drinking water in Namibia. The FEIS also cited reports from 11 Colorado and California, in which the use of reclaimed water as drinking water has been 12 considered, though not approved only because of the stigma of drinking reclaimed water. The 13 FEIS also contains information about studies concerning ingestion of wastewater comingled 14 with groundwater. 15 In addition to discussing the ADEQ's standards, federal drinking water standards, as 16 well as studies and reports regarding the use of reclaimed water, the Forest Service also 17 discussed at length the process for treating the water at the Flagstaff Rio de Flag treatment 18 plant, which will provide the water for snowmaking. The FEIS also discusses the various 19 monitoring and permit requirements for providing reclaimed water to be used for 20 snowmaking, including testing, treatment and reporting. This included discussions of the 21 various means of removing most bacteria and pollutants from the water. The FEIS also 22 discusses the quality of the Class A+ water used based on studies of the water from Rio de 23 Flag testing the water for levels of various particles. 24 In addition, the Forest Service also considered a number of studies that examined the 25 potential health impacts of exposure to a class of pollutants called endocrine disruptors, 26 which are contained in small amounts in reclaimed water. One of the studies examined the 27 effects of Rio de Flag treated water on amphibians immersed in the water. The FEIS noted 28 that while this study suggested that endocrine disruptors in the water may have some - 32 - 1 potential health impact for humans, it also stressed that full immersion of amphibians in 2 100% reclaimed water represented a much greater level of exposure than humans recreating 3 in snow made from reclaimed water, some of which would likely be mixed with natural 4 snow. The FEIS also cited other studies suggesting that there were no adverse human effects 5 from endocrine disruptors. As the Forest Service makes clear, the scientific data regarding 6 the health effects of human exposure to reclaimed water is uncertain, with some studies 7 suggesting that certain compounds in the water do have potential for some health impact and 8 others indicating there is no impact on human health. 9 The FEIS thus includes extensive discussions of various factors relevant for assessing 10 the safety of ingesting reclaimed water, including discussions of the ADEQ standards and 11 permit requirements, studies on the impact of full immersion of animals in the water to be 12 used for snowmaking, studies and reports regarding the use of reclaimed water, including use 13 as drinking water, analysis of the composition of the water to be used for snowmaking, and 14 comparison with federal drinking standards, and discussion of the treatment the water will 15 incur before it is used to make snow. In considering certain studies regarding the effects of 16 exposure to Class A+ reclaimed water, the FEIS properly notes an absence of certainty or 17 consensus surrounding this issue with some of the data suggesting a possible harmful effect 18 of endocrine disruptors and other studies suggesting no effect. This is entirely appropriate 19 and in compliance with NEPA. See Salmon River Concerned Citizens v. Robertson, 32 F.3d 20 1359 (9th Cir. 1994) (NEPA does not require courts to resolve disagreements among various 21 scientists as to methodology); Robertson v. Metho Valley Citizen’s Council, 490 U.S. at 350 22 (1989) (“NEPA merely prohibits uninformed agency action”). 23 provides a "reasonably thorough discussion of the significant aspects of the probable 24 environmental consequences" Idaho Conservation League, 956 F.2d at 1519, such that its 25 decision to approve the use of Class A+ reclaimed water for snowmaking was not arbitrary 26 and capricious and the Court finds that as a matter of law, the evidence in the administrative 27 record permitted the agency to make the decision it id. Occidental Eng'g Co. v. Immigration 28 & Naturalization Serv., 753 F.2d at 769. - 33 - The Forest Service thus 1 The Court also concludes that in relying on the ADEQ and the EPA standards and in 2 conducting its own extensive analysis of the available scientific information, the Forest 3 Service did not fail to ensure the scientific integrity of its environmental analysis. For the 4 same reasons, the Court also finds that the Forest Service did not fail to disseminate quality 5 information related to the potential impact of ingesting snow made from reclaimed water. 6 The extensive information the agency provided in connection with its analysis constituted 7 quality information.5 8 Although the Forest Service engaged in a thorough discussion regarding the safety of 9 exposure to reclaimed water for humans sufficient to assess the safety of ingestion, Plaintiffs 10 cite the fact that the FEIS does not explicitly mention the risk that individuals may ingest 11 snow during recreation as evidence that the agency failed to properly consider this issue. The 12 Forest Service's responses to comments from the public, however, more directly and 13 specifically address the risk that snow made from reclaimed water may be ingested by those 14 recreating in it and what steps will be taken to minimize those risks. The responses include 15 the following statements: 16 17 18 [the proposal] has the potential to directly expose winter recreational users and Snowbowl employees to reclaimed water in the form of artificial snow. Potential exposure pathways include inhalation, ingestion, and dermal contact. The potential for incidental ingestion and dermal contact with snow are the primary routes of exposure given the water reuse is for 19 20 21 22 23 24 25 26 27 28 5 Plaintiffs offer no support for their claim that the Forest Service failed to disseminate quality information other than to state in their motion for summary judgment that the Forest Service improperly assumed that the ADEQ determined reclaimed water to be safe and failed to provide the requisite decisional documents to the public, and to make the conclusory allegation that "[r]egardless of whether or not the agency relied on ADEQ the Forest Service completely failed to disseminate 'high quality' information concerning the ingestion of snow." Plaintiffs failed to respond to Defendants' motion for summary judgment on this claim. Thus, even though the Court finds that the Forest Service did disseminate quality information on the potential impact of ingesting snow made from reclaimed water because it was appropriate for it to rely on the ADEQ and because the additional information it provided related to the additional inquiry it made regarding the safety of exposure to reclaimed water was quality information, the Court also concludes that because the Plaintiffs failed to respond to Defendants' motion for summary judgment on this point, they have abandoned this claim. Jenkins v. County of Riverside, 398 F.3d 1093, 1095 n.4 (9th Cir. 2005). - 34 - 1 2 3 snowmaking...[A]lthough direct and full body contact with artificial snow is expected to occur, the general need for winter garments to protect against wet and cold will limit the potential for and amount of dermal contact. Consequently, the use of reclaimed water use in artificial snowmaking is not considered to have a major negative impact to the public during recreation uses. 4 5 6 7 8 Conditions specified for the permitted reuse of reclaimed water under the City of Flagstaff Reclaimed Water Individual Permit are intended to minimize the risk of exposure and protect public health. To minimize risks of ingestion at reuse sites there are requirements for signage advising the public of the use of reclaimed water. At the Snowbowl, as at other open areas such as city parks and schools in Flagstaff where the reclaimed water is used, signs will be posted to alert staff and recreational users that reclaimed water is used for artificial snowmaking and to avoid intentional ingestion of snow. 9 (Response to comment 6.4 (5)) (emphasis added). Another response states: 10 11 12 13 14 15 16 17 18 19 20 21 If the snowmaking alternative is approved, signs will be posted at the Arizona Snowbowl to inform the public that reclaimed water is used to make artificial snow and not to ingest the snow. To prevent illness from ingestion of reclaimed water in use at the Arizona Snowbowl as well as at City of Flagstaff parks and school grounds, the wastewater is disinfected by ultraviolet radiation followed by hypochlorite at the Rio de Flag WRF prior to reuse. Monitoring of bacterial levels is done daily to assure the reclaimed water is adequately disinfected. [t]he use of reclaimed water in the proposed snowmaking is not considered to have a major adverse impact to the public during recreational skiing and snow play. It should also be noted that reclaimed water used for public recreation, or any reuse application that has the potential for direct public contact is very strictly controlled. The Arizona Department of Environmental Quality (ADEQ) has developed regulations compelling specific advanced treatment requirements for reuse applications having higher degrees of public contact, such as skiing, that include tertiary treatment with disinfection. In addition ADEQ requires permits for all reclaimed water reuse that specify monitoring requirements, including frequent microbiological testing to assure pathogens are removed from wastewater, and reporting requirements. In meeting these requirements, the reclaimed water is acceptable for unrestricted body contact and authorized for artificial snowmaking for skiing by ADEQ. 22 (Response to comment 6.5) (emphasis added). Still another response answering a comment 23 about the possibility of children ingesting the snow states: 24 25 26 27 28 There will be signs posted at Snowbowl informing visitors of the use of reclaimed water at a snowmaking water source. Much like the areas of Flagstaff where reclaimed water is used, it is the responsibility of the visitor or the minor's guardian to avoid consuming snow made with reclaimed water. It is important to note that machine-produced snow would be mixed and therefore diluted with natural snow decreasing the percentage of machine produced snow within the snowpack. Because ADEQ approved the use of reclaimed water, it is assumed different types of incidental contact that - 35 - 1 could potentially occur from use of class A reclaimed water for snowmaking were fully considered. 2 (Response to comment 6.42) (emphasis added). These responses confirm that in examining 3 the safety of using reclaimed water for snowmaking, the Forest Service was aware of and 4 considered the fact that individuals, including children, recreating in the snow made from 5 reclaimed water might ingest the snow. The Plaintiffs argue that the response to the 6 comments are not part of the FEIS and therefore cannot be considered when assessing the 7 agency's response. Courts can, however, look to the responses to comments for confirmation 8 that an agency has taken the requisite hard look of an issue under NEPA. See, e.g., Envtl. 9 Prot. Info. Ctr. v. U.S. Forest Service, 451 F.3d 1005, 1014-15 (9th Cir. 2006) (even if Forest 10 Service erred by failing to include a proposed timber sale in the EIS, it remedied the error 11 by including a reasonably complete discussion of the issue in the comment response); Native 12 Ecosystems Council v. U.S. Forest Service, 428 F.3d 1233, 1241 (9th Cir. 2005) (Forest 13 Service's point by point response to comments "underscores our conclusion that the Forest 14 Service took a hard look and fairly considered the Reynolds Report habitat 15 recommendations"). 16 The Court thus finds that the Forest Service took the requisite hard look at the 17 possibility that individuals, including children, would ingest snow made from reclaimed 18 water and that its decision to approve the use of Class A + reclaimed water for snowmaking 19 was not arbitrary and capricious. The Forest Service does not explicitly conclude that based 20 on its review of the relevant information and studies, the incidental or even intentional 21 ingestion of snow made from reclaimed water by children and adults that may occur during 22 recreation will be safe. Such a conclusion, however, is not necessary. Beno v. Shalala, 30 23 F.3d at 1073 ("[W]hile formal findings are not required, the record must be sufficient to 24 support the agency action, show that the agency has considered the relevant factors and 25 enable the court to review the agency's decision."); see also C.K. v. New Jersey Dep't of 26 Health & Human Servs., 92 F.3d 171, 183 (3d Cir. 1996) ("[T]he mere absence of formal 27 findings is not a sufficient basis for reversal because the Secretary was not required under 28 - 36 - 1 the APA or [42 U.S.C. §] 1315(a) to make findings . . .") While this may mean that the FEIS 2 has “less than ideal clarity” on this particular issue, the Court finds that the Forest Service 3 engaged in a reasonably thorough discussion regarding the human health effects of exposure 4 to reclaimed water, including ingestion, from which “the agency's path may reasonably be 5 discerned." Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. at 285. 6 Although the Plaintiffs have consistently conveyed to this Court their desire that the agency 7 had reached a different conclusion and determined that the potential risk to human health 8 posed by the ingestion of snow made from reclaimed water during recreation is too great to 9 approve the proposal, that is not the Court’s decision to make. Robertson, 490 U.S. at 349. 10 "[T]he Court is obligated to defer to the responsible federal agency's informed assessment 11 of the scientific evidence." Navajo Nation, 408 F. Supp.2d at 878. Based on the record 12 before it, the Court concludes that the Forest Service made such an informed assessment. 13 VI. Summary 14 The Court finds that the Plaintiffs' claims are barred by the doctrine of laches. 15 Plaintiffs lacked diligence in pursuing their claims by knowingly failing to join the Navajo 16 Nation litigation initiated in 2005 and waiting to bring their lawsuit until that lawsuit was 17 complete. This has prejudiced the Defendants because much of the improvement project is 18 now complete and both Snowbowl and the Forest Service have been forced to litigate and 19 may continue to be forced to litigate serial lawsuits filed by plaintiffs who without 20 justification delay bringing claims until resolution of other lawsuits. In the alternative, the 21 Court finds that the Forest Service has taken the requisite hard look at the environmental 22 effects of the proposed challenged action. Based on all of the information presented, the 23 Court finds that the Forest Service considered the relevant factors and that the evidence in 24 the record reasonably permitted the agency to make the decision it did. There is an 25 /// 26 /// 27 /// 28 /// - 37 - 1 insufficient basis for the Court to grant Plaintiffs' request and find the agency's decision was 2 arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law. 3 Accordingly, 4 IT IS HEREBY ORDERED denying Plaintiffs' Motion for Summary Judgment 5 (Doc. 74) 6 IT IS FURTHER ORDERED denying Plaintiffs' request for injunctive relief 7 IT IS FURTHER ORDERED granting Defendants' Motion for Summary 8 Judgement. (Docs. 88 and 92) 9 IT IS FURTHER ORDERED denying Defendant Arizona Snowbowl Resort 10 Limited Partnership's Motion to Strike Plaintiffs' Citations to the Vacated Ninth Circuit Panel 11 Opinion. (Doc. 85) 12 IT IS FURTHER ORDERED denying Plaintiffs' Motion to Strike. (Doc. 101). 13 IT IS FURTHER ORDERED directing the Clerk to enter judgment for Defendants. 14 DATED this 30th day of November, 2010. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 38 -

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